441 P.3d 720
Or. Ct. App.2019Background
- Plaintiff (an attorney) sued former client Seida LLC and related individuals; Seida siblings obtained a judgment for attorney fees and the court awarded them $62,608.
- Plaintiff appealed the fee judgment and proffered an undertaking; Seida siblings objected and the trial court sustained the objection before entering its order.
- While the order had not yet been entered, defendant Bowser (counsel for the Seida siblings) issued writs of garnishment to local banks, two of plaintiff's clients, and plaintiff's legal assistant to collect the judgment.
- A bank paid $3,686.12 in response; Bowser later released the garnishments and returned the funds after plaintiff asserted the garnishments violated automatic stay statutes.
- Plaintiff sued defendants alleging wrongful execution (violation of automatic stay), statutory violation, libel per se, and sought declaratory relief; defendants moved to strike under Oregon’s anti‑SLAPP statute (ORS 31.150).
- The trial court denied the special motions to strike; defendants appealed arguing the garnishment writs were statements "submitted in a judicial proceeding" or "in connection with an issue under consideration or review by a judicial body." The court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether writs of garnishment are "statements submitted in a judicial proceeding" under ORS 31.150(2)(a) | Writs were not submissions to the court and thus not protected by the anti‑SLAPP statute | Writs invoke court authority and therefore qualify as statements submitted in a judicial proceeding | Writs sent to third parties were not "submitted" to the court for consideration and thus not covered by ORS 31.150(2)(a) |
| Whether writs were "submitted in connection with an issue under consideration or review by a judicial body" under ORS 31.150(2)(b) | Writs did not concern an issue then under active judicial consideration such that protection applies | Garnishment is part of a judicial proceeding and thus fits (2)(b) | Defendants did not show the writs were submitted in connection with an issue under consideration by a judicial body when issued; (2)(b) does not apply |
| Whether defendants met their prima facie burden under ORS 31.150(3) to shift burden to plaintiff | Plaintiff argued defendants failed to show the claims arose from protected activity | Defendants argued issuance of writs is protected petitioning activity, so they met the initial burden | Court held defendants failed to make the required prima facie showing that the claims arose from protected statements/documents under (2)(a) or (b) |
| Whether plaintiff demonstrated probability of prevailing (if burden shifted) | Plaintiff presented evidence supporting prima facie claims of wrongful execution and related claims | Defendants argued plaintiff lacked substantial evidence to show probability of success | Court did not reach a reversal on this ground because defendants failed initial burden under (2); limited judgment denying strike affirmed |
Key Cases Cited
- Mullen v. Meredith Corp., 271 Or. App. 698, 353 P.3d 598 (2015) (describing purpose of ORS 31.150 as early dismissal tool for questionable suits arising from public‑arena activity)
- Young v. Davis, 259 Or. App. 497, 314 P.3d 350 (2013) (explaining two‑step burden‑shifting process under ORS 31.150)
- Deep Photonics Corp. v. LaChapelle, 282 Or. App. 533, 385 P.3d 1126 (2016) (review standard for legal questions on special motions to strike)
- Neumann v. Liles, 261 Or. App. 567, 323 P.3d 521 (2014) (procedural guidance on taking facts from pleadings and affidavits for ORS 31.150 review)
- State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009) (statutory construction principles: text and context are primary)
- PGE v. Bureau of Labor & Indus., 317 Or. 606, 859 P.2d 1143 (1993) (text is best evidence of legislative intent)
- Handy v. Lane County, 360 Or. 605, 385 P.3d 1016 (2016) (on use of out‑of‑state decisions and relevance of temporal relation to statute adoption)
- Clackamas River Water v. Holloway, 261 Or. App. 852, 322 P.3d 614 (2014) (defining "SLAPP" acronym)